May 30, 2013

Host: José Cárdenas

Maricopa County Sheriff's Office Racial Profiling Ruling

A federal judge ruled that the Maricopa County Sheriff's office engaged in racial profiling. He also ordered the MCSO to racial profiling when making law enforcement decisions. ACLU of Arizona's Legal Director, Daniel Pochoda, talks about the ruling.

José Cardenas: Thank you for joining us. Last week, a Federal judge found that the Maricopa County sheriff's office engaged in unconstitutional racial profiling against Latinos. The judge ordered the MCSO to stop targeting Latinos when making law enforcement decisions. The lead attorney representing sheriff Joe Arpaio plans to appeal the finding that the agency engaged in racial profiling. Joining me to talk about the ruling is Daniel Pochoda, legal director for the ACLU of Arizona. Dan, welcome to "Horizonte." You have been on the show before. We have talked about some of these issues before. 142 pages?

Daniel Pochoda: Indeed. Indeed.

José Cardenas: What's your best summary?

Daniel Pochoda: The judge ruled in the favor of the plaintiffs in a very comprehensive and detailed opinion, which supported all of our allegations. The plaintiffs' allegations, allegations that have been made by the community for the past five or six years about the massive abuses and unconstitutional actions by this sheriff and his entire department. And the judge found in a very carefully worded opinion, it will be an appeal-proof decision in the ninth circuit will not overturn it given the careful consideration and the well-documented findings. Court found there was a systematic practice and policy in the MCSO from the sheriff on down starting with the sheriff to violate the basic constitutional rights of Latinos in Maricopa County. The action was on behalf of all Latinos in the County who were stopped by the sheriff's office and the vehicle, passengers and drivers and the court, this is the first and most important step, in stopping those practices.

José Cardenas: The court in terms of the time line of events, drew a distinction between the point in time when sheriff's deputy were authorized under 287 G to assist in immigration enforcement, and after when the Department of Homeland Security took away that authority. Were they doing any different before and after? And if so, if they weren't, what was the impact of that in terms of the legality?

Daniel Pochoda: Well, it had some impact in terms of aspects of legality. The court found at every point the sheriff's office was operating unconstitutionally in that it was using race as a factor impermissibly in its law enforcement decisions that was true even when they had the 287 G authority which was basically being sort of the given authority by Federal, the agency, ice, to assist them. They were deputized, if you will. There were certain things that go along with that. They could stop people, if you were one of the deputies in the sheriff's deputy that had that status they were able to stop solely on reasonable suspicion the person was in this country unlawfully, unauthorized. Once they lost that authority they could not use that finding and the court is very clear about that. Either for enforcing Federal immigration law or the state laws of human smuggling or the employment sanctions law could not be based on the reasonable suspicion that any Sherriff’s office that persons are in the country unlawfully. The court found they were doing that regularly. It's not a crime to be in the country unlawfully. It's basically a civil violation and requires criminal activity to form the basis of reasonable suspicion. Those have been enjoined. So it did give them some greater leeway in the reasonable suspicion equation when they were deputized, if you will, by the Federal government. Even at that point they were acting unconstitutionally in other ways. And they maintained their authority, they claimed that they could still exercise this authority even after they lost the sheriff lost his 287 G but still continued to base reasonable suspicion on the fact they thought someone was here unlawfully.

José Cardenas: The sheriff and the witnesses have testified for the sheriff all insisted they had probable cause to make the initial stop.

Daniel Pochoda: They had probable cause in the sense they found some other violation, generally a traffic violation. They also testified these officers that they could find a traffic violation if they watched any car on the street for a period of two minutes, they would find a traffic or vehicle violation, tail light out, driving over the white line. It was also clearly documented and found by this court that they, their selection as to who to stop was based on race. Because there were too many cars, they couldn't stop all of them who, in fact, committed such a violation or that's all they would be doing and the statistics were so clear when 90%, 85%, 80%, over 90% of the passengers who were stopped were Latino, it was clear that they weren't using a race-neutral criteria for decide which cars to stop. And the court found that at every stage of the process, where, in fact, to have raids and operations, who to stop, in terms of after they observed the passengers and drivers in a car, and who to investigate after the stop, the court found that race was a factor that is impermissible, has long been unconstitutional and has been enjoined by this court.

José Cardenas: Speaking of statistics, last time we covered this topic on our show, we had counsel for both sides on the program. And certainly the sheriff's lawyer was making a point that your expert witness had been discredited and that there were other plausible explanations for the numbers he was coming up with.

Daniel Pochoda: The court disagreed, and we certainly disagree with that. The court found that Ralph Taylor, the expert for the plaintiffs, recognized expert in statistics and in the field, did very careful studies demonstrating there was a disproportional number of Latinos that were stopped particularly on these operations, these are called crimes of suspicion sweeps that were let's get people who look like they are here illegally meaning people of color and he found experts for the defendants, if fellow named Steve Camarata, associated with the anti-immigrant movement and as well as being a statistician, had not in any way refuted the claims and indeed in many ways he acknowledged that the findings of Mr. Taylor were accurate and based on good information.

José Cardenas: Dan, one of the strategies that seemed to be employed by the defense was to draw a distinction between the sheriff's public statements and the actual training and conduct of the deputies, in essence, while the sheriff may say what he says but that's for public consumption. We follow the law, we were trained in the proper approach and they cite ice as a basis for what they did. How did that play out in the court's opinion?

Daniel Pochoda: Not very well. As one can imagine, the CEO of an organization cannot suddenly say, after running the place for the last five or six years, hey, it wasn't my job. It was, in fact, stipulated in between the parties that the sheriff is the head of the agency, that his word is the law, full, of that agency, and that they all followed his word. So that just didn't carry any weight as it shouldn't, with the court that, no, it wasn't my job. I am the head of the agency, the buck stops with him. And I should also add that none of the officers involved also exhibited proper or constitutional conduct. The leaders of these outfits and units in the sheriff's department that oversaw these raids acknowledged that they made stops based on race, that they had no ability to check if anyone was racially profiling any of their officers, they didn't believe anyone racially profiled because, I know those guys and I trust them and the, their own expert from the for the sheriff's department said that was below the standard of care of any professional law enforcement organization, to not, in fact, look into whether racial profiling was going on. Particularly given the very skewed statistics of 80, 90% of the stops being Latinos. So that it's not as if the officers themselves, the line people, in fact, were acting properly and the sheriff alone was acting improperly. It was equally the blame of all, starting with the top.

José Cardenas: Dan, I know there's a lot more to talk about in this opinion. And there's a lot more to come. So we will probably be having you back to talk about that because we are of time right now.